If you have ever received a pre-litigation records request, then you may already know that such a request tends to be a harbinger of a lawsuit on the horizon. Plaintiff’s lawyers regularly use Labor Code provisions to obtain pay and personnel records, before a lawsuit has been filed.

The acronym SLAPP stands for “Strategic Lawsuit Against Public Participation.” A SLAPP lawsuit seeks to chill, dissuade, or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. The majority of states (at least 28) have adopted or recognized “anti-SLAPP” statutes enacted for the purpose of safeguarding individuals’ First Amendment rights.

The evidence is in, the jury instructions are done, final trial motions have been made (and appeal points dutifully preserved), and it is time for the final argument, the holy grail of the trial lawyer. After months (if not years) of preparation, it is finally time to just argue, to tell the jurors what you think about the evidence and convince them to agree with your view of what is just and proper, right? Wrong.

Most attorneys are well aware of statutory obligations that require private and governmental entities to notify individuals of data breaches that involve the loss or disclosure of personally identifiable information. An area that may be less clear, however, is what ethical obligations attorneys have to guard against data breaches involving client information and what steps attorneys must take when a data breach occurs.

Nationwide class action claims against employers under the federal Fair Credit Reporting Act (FCRA) are more common now than ever before. On July 13, 2018, the U.S. Court of Appeals for the Ninth Circuit issued an opinion, Dutta v. State Farm, addressing an important procedural issue in FCRA cases: constitutional standing. Standing is a legal rule that addresses whether a person has been adversely affected by some action resulting in a right to assert the claim at issue, and a person without standing cannot continue a lawsuit in federal court. The standing issue is being litigated in courts across the country based on the U.S. Supreme Court’s ruling in another FCRA case, Robins v. Spokeo, Inc. In Dutta, the Ninth Circuit ruled for the employer, State Farm, and affirmed summary judgment on the ground that the plaintiff lacked standing to assert his claim for violation of the “pre-adverse action” notice provision in the FCRA.

The increase in connectivity has greatly improved an attorney’s ability to represent her clients. From searching a party on social media, to quickly parsing through online materials, saves hours and hours of time. Furthermore, attorneys can leverage professional organization memberships to seek input from thousands of other practitioners on legal questions or strategic decisions. Thus, an attorney can investigate deeper than ever before and easily liaise with other practitioners. But, this cuts both ways. Attorneys must be aware that technological advances also mean that her own clients and experts are vulnerable, and they must take steps to protect confidential information as necessary.

No one is perfect. In the adversarial arena of litigation, attorneys are rarely willing to admit even having a weak legal argument, let alone an actual error. However, the American Bar Association recently issued an opinion which makes it an ethical duty for attorneys to disclose any material errors in representation to their clients.